Harvard law prof spins a tape tale

Today’s Boston Globe contains some unusually juicy quotes from lawyers, who take a break from their normal practice of saying as little as possible as blandly as possible to describe flamboyantly eccentric Harvard Law Professor Charles R. Nesson as “unconventional,” “wacky” and “insane.”

Nesson, who openly admits to smoking marijuana and demonstrates a wicked Christopher Walken impression in a popular YouTube video, has been making waves recently for his defense of a Boston University grad student who downloaded music online. U.S. District Court Judge Nancy Gertner granted Nesson’s motion to record and broadcast a hearing in the case, a practice that is banned in the federal courts. The question of whether Gertner’s approval of the broadcast will be allowed was argued before the 1st U.S. Circuit Court of Appeals today.

Jonathan Saltzman’s Globe article about Nesson mentioned that one of the lawyer’s eyebrow-raising trial strategies in the music-downloading case involves his habit of secretly tape-recording oral and telephone conversations:

“In the past few weeks, he has tape-recorded a telephone conference with a federal judge and opposing counsel, and then – after US District Judge Nancy Gertner of Boston told him to shut it off – posted the recording on his blog and featured it in a take-home exam on evidence for his students.”

Nesson did not continue to tape the conversation after Gertner asked him to stop taping it. But, according to Saltzman, Nesson also secretly recorded his wife discussing the case and then posted that recording on his blog:

“[Fern Nesson] said she was unaware he tape-recorded her unfiltered criticisms of the potential expert witnesses and of a student on the legal team and posted it online. Nesson, she said, constantly carries a tiny digital tape recorder around their Cambridge house and must have turned it on when she wasn’t looking.”

Though the Globe article suggests that Nesson’s penchant for recording without permission might hurt his case, it doesn’t mention that Massachusetts has stringent wiretapping laws, outlined in MGL chapter 272, § 99, that require the consent of all parties for a recording to be taped and prohibit the disclosure of recordings obtained without consent.

That means Nessson’s recordings are not only unorthodox but possibly are illegal – to the tune of a $10,000 and/or jail time. But even Gertner didn’t raise that issue when she caught Nesson tape-recording her, an interchange you can still hear on Nesson’s blog. (The Gertner conversation is the second MP3 file.)

On the recording, Gertner tells Nesson that it is “not fair” to have one party taping the conversation. She does, however, consent to allow 20 of Nesson’s law students to listen in after the recording stops. That might be why, after Nesson complied with her request to turn off the recording, he then posted it on his law school blog as an exam question.

However, even Nesson’s commitment to transparency has its limits. His recording of his wife, which he had once posted on his blog here, seems to have been taken down.